Coppage v. McKune, 534 F.3d 1279 (10th Cir. 2008). · Go Syfert
Coppage v. McKune, 534 F.3d 1279 (10th Cir. 2008). Cases Citing This Book View Copy Cite
Quick Summary

Equitable tolling of the habeas statute of limitations applies only in rare and exceptional circumstances.

A state prisoner filed a federal habeas application thirteen days after the statutory limitations period expired, arguing that delayed notice of the state supreme court’s denial of his second postconviction motion warranted equitable tolling. The district court dismissed the application as untimely. The Tenth Circuit reviews the denial of a certificate of appealability, noting that when an application is denied on procedural grounds, the applicant faces a double hurdle: showing a substantial denial of a constitutional right and that reasonable jurists would find the procedural ruling debatable. The court holds that equitable tolling applies only in rare and exceptional circumstances. Because the prisoner received notice with fifty days remaining and was not similarly precluded from filing, the circumstances were not exceptional, and no reasonable jurist could debate the dismissal.

128 citation events (128 in the last 25 years) across 5 distinct courts.
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At page 1281 Determining substantial showing for collateral review82 citing cases“if the application was denied on procedural grounds, the applicant faces a double hurdle.”18 citing courts quote it · 80 listed here
  • Reynolds v. Miller, No. 20-3023 (10th Cir. June 17, 2020).unpublished
    (If the application was denied on procedural grounds, the applicant faces a double hurdle.)
  • Taylor v. Wade, No. 19-6062 (10th Cir. Oct. 3, 2019).unpublished
    (If the application was denied on procedural grounds, the applicant faces a double hurdle.)
  • Johnson v. Raemisch, No. 19-1044 (10th Cir. June 18, 2019).unpublished
    (If the application was denied on procedural grounds, the applicant faces a double hurdle.)
  • Stamps v. Miller, No. 18-1393 (10th Cir. Feb. 12, 2019).unpublished
    (If the application was denied on procedural grounds, the applicant faces a double hurdle.)
  • United States v. Brumley, No. 17-7081 (10th Cir. Oct. 19, 2018).unpublished
    (If the application was denied on procedural grounds, the applicant faces a double hurdle.)
  • McElhaney v. Bear, 700 F. App'x 872 (10th Cir. 2017).unpublished
    (If the application was denied on procedural grounds, the applicant faces a double hurdle.)
  • Mitchell v. Dowling, 672 F. App'x 792 (10th Cir. 2016).unpublished
    (If the application was denied on procedural grounds, the applicant faces a double hurdle.)
  • Jimenez v. State of Utah, 665 F. App'x 657 (10th Cir. 2016).unpublished 2 cites
    (If the application was denied on procedural grounds, the applicant faces a double hurdle.)
  • Maunz v. San Carlos Corr. Facility, 656 F. App'x 397 (10th Cir. 2016).unpublished
    (If the application was denied on procedural grounds, the applicant faces a double hurdle.)
  • King v. Wyoming Attorney Gen., 656 F. App'x 387 (10th Cir. 2016).unpublished
    (If the application was denied on procedural grounds, the applicant faces a double hurdle.)
Show 70 more citing cases
  • Jackson v. Martin, No. 21-6002 (10th Cir. Dec. 3, 2021).unpublished
    Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008).
  • Thompson v. Ward, No. 5:97-cv-00286 (W.D. Okla. Mar. 27, 2020).
    “faces a double hurdle”
  • Bias v. Martin, No. 18-5105 (10th Cir. July 8, 2019).unpublished
    Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008).
  • McElhaney v. Bear, No. 18-6037 (10th Cir. June 26, 2018).unpublished
    “[n]ot only must the applicant make a substantial showing of the denial of a constitutional right, but he must also show that jurists of reason would find it debatable . . . whether the district court was correct in its…”
  • United States v. Rodarmel, No. 17-3263 (10th Cir. Apr. 10, 2018).unpublished
    Where the district court denies a § 2255 movant’s claim on procedural grounds, the movant faces a “double 3 hurdle.” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008).
  • Milton v. Allbaugh, No. 17-6130 (10th Cir. Dec. 6, 2017).unpublished
    Where, as here, the district court denies a habeas petition on procedural 3 grounds such as untimeliness, the applicant faces a “double hurdle.” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008).
  • Porter v. Allbaugh, 672 F. App'x 851 (10th Cir. 2016).unpublished
    “This standard requires ‘a demonstration that ... includes showing that reasonable jurists could debate whether (or, for that matter, agree , that) the petition should have been resolved in a different manner or that the…”
  • United States v. Cordova, 589 F. App'x 400 (10th Cir. 2014).unpublished
    Not only must the applicant make a substantial showing of the denial of a constitutional right, but he must also show that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling.” Copp…
  • United States v. Sturm, 574 F. App'x 833 (10th Cir. 2014).unpublished
    “A COA will issue ‘only if the applicant has made a substantial showing of the denial of a constitutional right”
  • United States v. Eatman, 569 F. App'x 626 (10th Cir. 2014).unpublished 2 cites
    “A COA will issue ‘only if the applicant has made a substantial showing of the denial of a constitutional right”
  • Stouffer v. Trammell, 566 F. App'x 750 (10th Cir. 2014).unpublished
    “must also show ‘that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling”
  • Kingyon v. State of Kansas, 564 F. App'x 397 (10th Cir. 2014).unpublished
    “the applicant faces a double hurdle”
  • Dopp v. Jones, 562 F. App'x 637 (10th Cir. 2014).unpublished
    “must also show ‘that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling”
  • Bowie v. Franklin, 561 F. App'x 734 (10th Cir. 2014).unpublished
    “must also show ‘that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling”
  • Gawlas v. Monday, 556 F. App'x 722 (10th Cir. 2014).unpublished
    “must also show ‘that jurists of reason would And it debatable ... whether the district court was correct in its procedural ruling”
  • Hernandez v. Jones, 556 F. App'x 672 (10th Cir. 2014).unpublished
    “must also show ‘that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling”
  • Weikert v. Bigelow, 552 F. App'x 823 (10th Cir. 2014).unpublished
    “must also show ‘that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling”
  • Glover v. Fox, 550 F. App'x 592 (10th Cir. 2013).unpublished
    “must also show ‘that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling”
  • Schell v. Vaughn, 549 F. App'x 788 (10th Cir. 2013).unpublished
    (omission in original)
  • United States v. Espinoza, 545 F. App'x 783 (10th Cir. 2013).unpublished 2 cites
    “only if the applicant has made a substantial showing of the denial of a constitutional right”
  • Webster v. Jones, 532 F. App'x 824 (10th Cir. 2013).unpublished
    (omission in original)
  • Vreeland v. Davis, 543 F. App'x 739 (10th Cir. 2013).unpublished
    (omission in original)
  • United States v. Wilson, 545 F. App'x 714 (10th Cir. 2013).unpublished
    “A COA will issue ‘only if the applicant has made a substantial showing of the denial of a constitutional right”
  • Clay v. State of Oklahoma, 541 F. App'x 805 (10th Cir. 2013).unpublished
    (omission in original)
  • Bowie v. Franklin, 541 F. App'x 803 (10th Cir. 2013).unpublished
    “only if the applicant has made a substantial showing of the denial of a constitutional right”
  • Thomas v. Jones, 530 F. App'x 794 (10th Cir. 2013).unpublished
    “only if the applicant has made a substantial showing of the denial of a constitutional right”
  • Hamlin v. Zavaras, 531 F. App'x 840 (10th Cir. 2013).unpublished
    Not only must the applicant make a substantial showing of the denial of a constitutional right, but he must also show ‘that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling.’ ” C…
  • Chambers v. Medina, 525 F. App'x 741 (10th Cir. 2013).unpublished
    Not only must the applicant make a substantial showing of the denial of a constitutional right, but he must also show ‘that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling.’” Co…
  • Faine v. Jones, 526 F. App'x 806 (10th Cir. 2013).unpublished
    “the applicant faces a double hurdle”
  • Barnes v. Davis, 513 F. App'x 803 (10th Cir. 2013).unpublished
    Not only must the applicant make a substantial showing of the denial of a constitutional right, but he must also show ‘that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling.’” Co…
  • Williams v. Jones, 506 F. App'x 848 (10th Cir. 2013).unpublished
    Not only must the applicant make a substantial showing of the denial of a constitutional right, but he must also show ‘that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling.’” Co…
  • United States v. Snider, 504 F. App'x 674 (10th Cir. 2012).unpublished
    Not only must the applicant make a substantial showing of the denial of a constitutional right, but he must also show ‘that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling.’” Co…
  • Brown v. Roberts, 501 F. App'x 825 (10th Cir. 2012).unpublished
    Not only must the applicant make a substantial showing of the denial of a constitutional right, but he must also show ‘that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling.’ ” C…
  • Clemons v. State of Kansas, 384 F. App'x 734 (10th Cir. 2010).unpublished
  • Harrison v. United States, 375 F. App'x 830 (10th Cir. 2010).unpublished
  • United States v. Holcomb, 370 F. App'x 943 (10th Cir. 2010).unpublished
  • United States v. Sandoval, 371 F. App'x 945 (10th Cir. 2010).unpublished
  • United States v. Rodriguez-Rivera, 372 F. App'x 844 (10th Cir. 2010).unpublished
  • Tate v. Addison, 378 F. App'x 814 (10th Cir. 2010).unpublished
  • United States v. Dowell, 388 F. App'x 781 (10th Cir. 2010).unpublished
  • United States v. Carrillo, 389 F. App'x 861 (10th Cir. 2010).unpublished
  • Reed v. Timme, 389 F. App'x 850 (10th Cir. 2010).unpublished
  • United States v. Williamson, 319 F. App'x 734 (10th Cir. 2009).unpublished
  • United States v. Alvarado-Valencia, 328 F. App'x 592 (10th Cir. 2009).unpublished
  • Ducoin v. Hartley, 341 F. App'x 373 (10th Cir. 2009).unpublished
  • Wade v. United States, 421 B.R. 375 (10th Cir. 2009).unpublished
  • Newton v. Dinwiddie, 342 F. App'x 421 (10th Cir. 2009).unpublished
  • Segura v. Workman, 351 F. App'x 296 (10th Cir. 2009).unpublished
  • Clay v. Smith, 365 F. App'x 98 (10th Cir. 2010).unpublished
  • United States v. Harris, 368 F. App'x 866 (10th Cir. 2010).unpublished
  • McCary v. Zavaras, 398 F. App'x 399 (10th Cir. 2010).unpublished
  • United States v. Buckles, 647 F.3d 883 (9th Cir. 2011).published
  • Jernigan v. Jaramillo, 436 F. App'x 852 (10th Cir. 2011).unpublished
  • Welch v. Milyard, 436 F. App'x 861 (10th Cir. 2011).unpublished
  • Kirby v. New Mexico Attorney Gen., No. 11-2082 (10th Cir. Sept. 19, 2011).unpublished
  • Roman v. Vaughn, 442 F. App'x 365 (10th Cir. 2011).unpublished
  • United States v. Oakes, 445 F. App'x 88 (10th Cir. 2011).unpublished
  • Neiberger v. Rudek, 450 F. App'x 719 (10th Cir. 2011).unpublished
  • United States v. Duran, 454 F. App'x 671 (10th Cir. 2012).unpublished
  • Small v. Milyard, 488 F. App'x 288 (10th Cir. 2012).unpublished
  • United States v. Wilson, 631 F. App'x 623 (10th Cir. 2015).unpublished
  • Luevano v. Clinton, 645 F. App'x 623 (10th Cir. 2016).unpublished
  • Kolosha v. Bear, 645 F. App'x 655 (10th Cir. 2016).unpublished
  • Stewart v. People of the State of CO, 646 F. App'x 593 (10th Cir. 2016).unpublished
  • Blaurock v. State of Kansas, 686 F. App'x 597 (10th Cir. 2017).unpublished
  • Faircloth v. Raemisch, 692 F. App'x 513 (10th Cir. 2017).unpublished
  • United States v. Halcrombe, 700 F. App'x 810 (10th Cir. 2017).unpublished
  • United States v. Magallon-Maldanado, 701 F. App'x 727 (10th Cir. 2017).unpublished
  • United States v. Fisher, No. 18-3138 (10th Cir. Nov. 30, 2018).unpublished
  • Kyle Millis v. Randee Rewerts, 181 F.4th 669 (6th Cir. 2026).published
At page 1282 Declining equitable tolling when filing deadline was known13 citing casespetitioner did not act with diligence where he had fifty days remaining on limitations period upon receiving notice of state court order, but failed to timely file habeas petition1 citing court put it this way
  • Jones v. Rewerts, No. 2:22-cv-11854 (E.D. Mich. Mar. 28, 2023).
    (petitioner did not act with diligence where he had fifty days remaining on limitations period upon receiving notice of state court order, but failed to timely file habeas petition)
  • Collins v. Bear, 698 F. App'x 946 (10th Cir. 2017).unpublished 2 cites
    Equitable tolling of the one-year limitation may be granted, however, in “rare and exceptional circumstances.” Coppage v. McKune, 534 F.3d 1279, 1280 (10th Cir. 2008) (quoting York v. Galetka, 314 F.3d 522, 527 (10th Cir. 2003)).
  • Villanueva v. Frawner, 619 F. App'x 723 (10th Cir. 2015).unpublished
    “could raise only issues previously submitted in *725 state court, so much of the research would already have been done”
  • Soriano v. Jones, 522 F. App'x 428 (10th Cir. 2013).unpublished
    (affirming denial of equitable tolling in similar circumstances)
  • Von Hallcy v. Milyard, 387 F. App'x 858 (10th Cir. 2010).unpublished
  • United States v. Gerhartz, 303 F. App'x 601 (10th Cir. 2008).unpublished
  • Trujillo v. Janecka, No. 07-2116 (10th Cir. Feb. 3, 2009).unpublished
  • Gardner v. Jones, 315 F. App'x 87 (10th Cir. 2009).unpublished
  • Johnston v. State of Utah, 345 F. App'x 333 (10th Cir. 2009).unpublished
  • United States v. Moya-Breton, 439 F. App'x 711 (10th Cir. 2011).unpublished
Show 3 more citing cases
At page 1280 Granting equitable tolling of statute of limitations8 citing cases“[E]quitable tolling of the one-year period may be granted, but only in ‘rare and exceptional circumstances”3 citing courts quote it
Retrieving the full opinion text from the archive…
Ronnell G. COPPAGE, Petitioner-Appellant,
v.
David R. McKUNE, Warden, Lansing Correctional Facility; Stephen Six, Attorney General, State of Kansas, Respondents-Appellees
08-3069.
Court of Appeals for the Tenth Circuit.
Jul 24, 2008.
Published opinion
534 F.3d 1279
2008 WL 2842146
Ronnell G. Coppage, Lansing, KS, pro se., Kristopher Ailslieger, Jared S. Maag, Attorney General for the State of Kansas, Topeka, KS, for Respondents-Appellees.
Briscoe, Murphy, Hartz.
Cited by 101 opinions  |  Published

ORDER DENYING CERTIFICATE OF APPEALABILITY

HARRIS L. HARTZ, Circuit Judge.

The district court dismissed as untimely the application under 28 U.S.C. § 2254 of Ronnell G. Coppage. Mr. Coppage does not contest that he failed to file his application within the statutory limitations period but claims entitlement to equitable tolling because of delayed notice by the Kansas Supreme Court of its denial of his second motion for postconviction relief. Because no reasonable jurist could debate the district court’s denial of equitable tolling, we deny a certificate of appealability (COA), see 28 U.S.C. § 2253(c) (requiring COA to appeal dismissal of claim under § 2254), and dismiss the appeal.

Mr. Coppage was convicted on June 4, 1997, by a Kansas state-court jury of (1) attempted first-degree murder, (2) criminal damage to property, and (3) criminal possession of a firearm. The Kansas Court of Appeals affirmed the convictions, and on September 28, 1999, the Kansas Supreme Court denied review. On August 22, 2000, Mr. Coppage filed a motion for postconviction relief, which a Kansas state district court denied on February 9, 2001; the court of appeals affirmed, and on April 29, 2003, the Kansas Supreme Court denied review. Mr. Coppage filed a second motion for postconviction relief in state court on June 24, 2003. The state district court denied this motion on January 28, 2004; the court of appeals affirmed; and the Kansas Supreme Court denied review on November 8, 2006. Twelve weeks later, on January 31, 2007, Mr. Coppage filed in the United States District Court for the District of Kansas his pro se application for habeas relief under § 2254.

The relevant portion of the Antiter-rorism and Effective Death Penalty Act requires a habeas application from a prisoner in state custody to be filed within one year of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The limitations period, however, is tolled for “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending....” Id. § 2244(d)(2). In addition, equitable tolling of the one-year period may be granted, but only in “rare and exceptional circumstances.” York v. Galetka, 314 F.3d 522, 527 (10th Cir.2003).

The government moved to dismiss Mr. Coppage’s application as time-barred under § 2244(d)(1). It computed that the one-year limitations period began on December 27, 1999, upon expiration of the 90-day period for Mr. Coppage to seek review in the United States Supreme Court of the Kansas Supreme Court’s af-firmance of his convictions on direct re[*1281] view. Before he filed his first postcon-viction motion, 238 days had elapsed. Another 56 days elapsed between the state supreme court’s decision on that motion and Mr. Coppage’s filing his second state postconviction motion. Accordingly, he had 71 days to file a § 2254 application after the Kansas Supreme Court denied review on November 8, 2006, with respect to his second motion. That period expired on January 18, 2007, thirteen days before he filed his § 2254 application.

In response to the government’s motion, Mr. Coppage conceded that his application was late, but argued for equitable tolling from November 8, 2006 (when the Kansas Supreme Court denied review of his second motion) to November 29 (when he received notice of the denial). He attached a letter dated October 30, 2006, from the clerk of the state supreme court, which stated that the court had not yet acted on his petition for review and would not act before the court conferred on December 4. On February 20, 2008, the district court determined that Mr. Coppage had not sustained his burden of establishing that equitable tolling should apply and dismissed the application as untimely. Mr. Coppage now seeks a COA to appeal that denial.

A COA will issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a demonstration that ... includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks omitted). If the application was denied on procedural grounds, the applicant faces a double hurdle. Not only must the applicant make a substantial showing of the denial of a constitutional right, but he must also show “that jurists of reason would find it debatable ... whether the district court was correct in its procedural ruling.” Id. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of a case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id.

Mr. Coppage acknowledges that his § 2254 application was untimely under § 2244, but contends that the limitations period should be equitably tolled because he was not promptly informed of the Kansas Supreme Court’s denial of his second motion for postconviction relief. After the Kansas Supreme Court denied review on November 8, 2006, his § 2254 application was due in federal district court by January 18, 2007. He claims, however, that he was not informed of the court’s decision until November 29, when he received a notification letter from his attorney. According to Mr. Coppage, he is entitled to equitable tolling because he diligently pursued his claim and filed an untimely application only because of circumstances beyond his control. See United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir.2008) (“Equitable tolling of the limitations period is available when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control.” (internal quotation marks omitted)).

We agree with the district court that Mr. Coppage’s circumstances are not “rare and exceptional.” York, 314 F.3d at 527. Compare the facts in Gabaldon. Prison officials placed Gabaldon in segregation and confiscated all his legal materials (in-[*1282] eluding a draft § 2255 motion and brief) “just six weeks before the expiration of the limitations period and held them until two weeks after that period expired.” 522 F.3d at 1124. Mr. Coppage was not similarly precluded from filing a timely application. Although the misleading letter from the Kansas Supreme Court’s clerk would have excused him from checking the status of his case until early December, he nevertheless received notice in ample time. After receiving the letter from his lawyer, he still had 50 days before the limitations period expired. Even with limited access to a prison law library, he could raise only issues previously submitted in state court, so much of the research would already have been done.

Mr. Coppage raises additional arguments in favor of equitable tolling, but we decline to address them because they were not presented to the district court in response to the government’s motion to dismiss. See Parker v. Scott, 394 F.3d 1302, 1309 n. 1 (10th Cir.2005) (we need not address arguments not raised in district court).

We DENY a COA and dismiss the appeal.